10 U.S.C. § 3208 — Planning for future competition in con-

Page 2431 TITLE 10—ARMED FORCES § 3208 ‘‘(b) DEVELOPMENT OF CRITERIA AND INITIATIVES.—(1) Not later than February 1, 2020, the Secretary of De- fense shall establish the pilot program and notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] of the criteria used to se- lect initiatives and the metrics used to track progress. ‘‘(2) Not later than May 1, 2020, the Secretary shall notify the congressional defense committees of the ini- tiatives selected for the program. ‘‘(3) Not later than December 1, 2020, the Secretary shall brief the congressional defense committees on the progress of the selected initiatives, including the progress of the initiatives at improving quality and ac- quisition cycle time according to the metrics developed under subsection (a)(2).’’ § 3207. Assessment before contract for acquisi- tion of supplies is entered into The Secretary of Defense shall ensure that be- fore a contract for the delivery of supplies to the Department of Defense is entered into— (1) when the appropriate officials of the De- partment are making an assessment of the most advantageous source for acquisition of the supplies (considering quality, price, deliv- ery, and other factors), there is a review of the availability and cost of each item of supply— (A) through the supply system of the De- partment of Defense; and (B) under standard Government supply contracts, if the item is in a category of sup- plies defined under regulations of the Sec- retary of Defense as being potentially avail- able under a standard Government supply contract; and (2) there is a review of both the procurement history of the item and a description of the item, including, when necessary for an ade- quate description of the item, a picture, draw- ing, diagram, or other graphic representation of the item. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1811(f), Jan. 1, 2021, 134 Stat. 4173.) Editorial Notes CODIFICATION The text of subsec. (c) of section 2305 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1811(f)(2), was based on Pub. L. 98–525, title XII, § 1213(a), Oct. 19, 1984, 98 Stat. 2591. PRIOR PROVISIONS A prior section 3207, act Aug. 10, 1956, ch. 1041, 70A Stat. 173; Pub. L. 85–155, title I, § 101(5), Aug. 21, 1957, 71 Stat. 376; Pub. L. 90–130, § 1(9)(C), (D), Nov. 8, 1967, 81 Stat. 375, prescribed authorized strength of Army Med- ical Specialist Corps in commissioned officers on active list of Regular Army, prior to repeal by Pub. L. 96–513, title II, § 202, title VII, § 701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981. AMENDMENTS 2021—Pub. L. 116–283, § 1811(f)(2), transferred subsec. (c) of section 2305 of this title to this section and struck out subsec. (c) designation at beginning. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed im- plementation and applicability of existing law, see sec- tion 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title. PROCESS FOR ENHANCED SUPPLY CHAIN SCRUTINY Pub. L. 115–91, div. A, title VIII, § 807, Dec. 12, 2017, 131 Stat. 1456, provided that: ‘‘(a) PROCESS.—Not later than 90 days after the date of the enactment of this Act [Dec. 12, 2017], the Sec- retary of Defense shall establish a process for enhanc- ing scrutiny of acquisition decisions in order to im- prove the integration of supply chain risk management into the overall acquisition decision cycle. ‘‘(b) ELEMENTS.—The process under subsection (a) shall include the following elements: ‘‘(1) Designation of a senior official responsible for overseeing the development and implementation of the process. ‘‘(2) Development or integration of tools to support commercial due-diligence, business intelligence, or otherwise analyze and monitor commercial activity to understand business relationships with entities de- termined to be threats to the United States. ‘‘(3) Development of risk profiles of products or services based on commercial due-diligence tools and data services. ‘‘(4) Development of education and training cur- ricula for the acquisition workforce that supports the process. ‘‘(5) Integration, as needed, with intelligence sources to develop threat profiles of entities deter- mined to be threats to the United States. ‘‘(6) Periodic review and assessment of software products and services on computer networks of the Department of Defense to remove prohibited products or services. ‘‘(7) Synchronization of the use of current authori- ties for making supply chain decisions, including sec- tion 806 of Public Law 111–383 (10 U.S.C. 2304 note) or improved use of suspension and debarment officials. ‘‘(8) Coordination with interagency, industrial, and international partners, as appropriate, to share infor- mation, develop Government-wide strategies for deal- ing with significant entities determined to be signifi- cant threats to the United States, and effectively use authorities in other departments and agencies to pro- vide consistent, Government-wide approaches to sup- ply chain threats. ‘‘(9) Other matters as the Secretary considers nec- essary. ‘‘(c) NOTIFICATION.—Not later than 90 days after es- tablishing the process required by subsection (a), the Secretary shall provide a written notification to the Committees on Armed Services of the Senate and House of Representatives that the process has been es- tablished. The notification also shall include the fol- lowing: ‘‘(1) Identification of the official designated under subsection (b)(1). ‘‘(2) Identification of tools and services currently available to the Department of Defense under sub- section (b)(2). ‘‘(3) Assessment of additional tools and services available under subsection (b)(2) that the Department of Defense should evaluate. ‘‘(4) Identification of, or recommendations for, any statutory changes needed to improve the effective- ness of the process. ‘‘(5) Projected resource needs for implementing any recommendations made by the Secretary.’’ § 3208. Planning for future competition in con- tracts for major systems (a) DEVELOPMENT CONTRACT.— (1) DETERMINING WHETHER PROPOSALS ARE NECESSARY.—The Secretary of Defense shall ensure that, in preparing a solicitation for the Page 2432 TITLE 10—ARMED FORCES § 3208 award of a development contract for a major system, the head of an agency consider requir- ing in the solicitation that an offeror include in its offer proposals described in paragraph (2). In determining whether to require such proposals, the head of the agency shall give due consideration to the purposes for which the system is being procured and the tech- nology necessary to meet the system’s re- quired capabilities. If such proposals are re- quired, the head of the agency shall consider them in evaluating the offeror’s price. (2) CONTENTS OF PROPOSALS.—Proposals re- ferred to in the first sentence of paragraph (1) are the following: (A) Proposals to incorporate in the design of the major system items which are cur- rently available within the supply system of the Federal agency responsible for the major system, available elsewhere in the national supply system, or commercially available from more than one source. (B) With respect to items that are likely to be required in substantial quantities dur- ing the system’s service life, proposals to in- corporate in the design of the major system items which the United States will be able to acquire competitively in the future. (b) PRODUCTION CONTRACT.— (1) DETERMINING WHETHER PROPOSALS ARE NECESSARY.—The Secretary of Defense shall ensure that, in preparing a solicitation for the award of a production contract for a major system, the head of an agency consider requir- ing in the solicitation that an offeror include in its offer proposals described in paragraph (2). In determining whether to require such proposals, the head of the agency shall give due consideration to the purposes for which the system is being procured and the tech- nology necessary to meet the system’s re- quired capabilities. If such proposals are re- quired, the head of the agency shall consider them in evaluating the offeror’s price. (2) CONTENTS OF PROPOSALS.—Proposals re- ferred to in the first sentence of paragraph (1) are proposals identifying opportunities to en- sure that the United States will be able to ob- tain on a competitive basis items procured in connection with the system that are likely to be reprocured in substantial quantities during the service life of the system. Proposals sub- mitted in response to such requirement may include the following: (A) Proposals to provide to the United States the right to use technical data to be provided under the contract for competitive reprocurement of the item, together with the cost to the United States, if any, of ac- quiring such technical data and the right to use such data. (B) Proposals for the qualification or de- velopment of multiple sources of supply for the item. (c) CONSIDERATION OF FACTORS AS OBJECTIVES IN NEGOTIATIONS.—If the head of an agency is making a noncompetitive award of a develop- ment contract or a production contract for a major system, the factors specified in sub- sections (a) and (b) to be considered in evalu- ating an offer for a contract may be considered as objectives in negotiating the contract to be awarded. Such objectives may not impair the rights of prospective contractors or subcontrac- tors otherwise provided by law. (d) ITEMS DEVELOPED EXCLUSIVELY AT PRIVATE EXPENSE.— (1) LIMITATION.—Whenever the head of an agency requires that proposals described in subsection (a)(2) or (b)(2) be submitted by an offeror in its offer, the offeror shall not be re- quired to provide a proposal that enables the United States to acquire competitively in the future an identical item if the item was devel- oped exclusively at private expense unless the head of the agency determines that— (A) the original supplier of such item will be unable to satisfy program schedule or de- livery requirements; or (B) proposals by the original supplier of such item to meet the mobilization require- ments are insufficient to meet the agency’s mobilization needs. (2) EVALUATION.—In considering offers in re- sponse to a solicitation requiring proposals de- scribed in subsection (a)(2) or (b)(2), the head of an agency shall base any evaluation of items developed exclusively at private expense on an analysis of the total value, in terms of innovative design, life-cycle costs, and other pertinent factors, of incorporating such items in the system. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1811(g), Jan. 1, 2021, 134 Stat. 4173.) Editorial Notes CODIFICATION The text of subsec. (d) of section 2305 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1811(g)(2)–(6) was based on Pub. L. 98–525, title XII, § 1213(a), Oct. 19, 1984, 98 Stat. 2591; Pub. L. 100–456, div. A, title VIII, § 806, Sept. 29, 1988, 102 Stat. 2010. PRIOR PROVISIONS A prior section 3209, act Aug. 10, 1956, ch. 1041, 70A Stat. 174; Pub. L. 85–861, § 1(60), Sept. 2, 1958, 72 Stat. 1462; Pub. L. 90–130, § 1(9)(E), Nov. 8, 1967, 81 Stat. 375; Pub. L. 95–485, title VIII, § 820(c)(1), (2), Oct. 20, 1978, 92 Stat. 1627, prescribed, with exception of Army Nurse Corps and Army Medical Specialist Corps, the author- ized strength of each branch in commissioned officers on active list of Regular Army, prior to repeal by Pub. L. 96–513, title II, § 202, title VII, § 701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981. A prior section 3210 was renumbered section 7110 of this title. A prior section 3211, acts Aug. 10, 1956, ch. 1041, 70A Stat. 175; Sept. 2, 1958, Pub. L. 85–861, § 1(67), 72 Stat. 1463; Nov. 8, 1967, Pub. L. 90–130, § 1(9)(F), 81 Stat. 375, prescribed authorized strength of Regular Army in offi- cers in each regular grade on promotion lists set forth in section 3296 of this title, prior to repeal by Pub. L. 96–513, title II, § 202, title VII, § 701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981. See section 521 et seq. of this title. A prior section 3212, acts Aug. 10, 1956, ch. 1041, 70A Stat. 175; Sept. 2, 1958, Pub. L. 85–861, § 1(68), 72 Stat. 1463; June 30, 1960, Pub. L. 86–559, § 1(6), 74 Stat. 265; Nov. 8, 1967, Pub. L. 90–130, § 1(9)(G), 81 Stat. 375; Dec. 12, 1980, Pub. L. 96–513, title V, § 502(6), 94 Stat. 2909, related to temporary increases in authorized strength in grades of Army Reserve and Army National Guard of United Page 2433 TITLE 10—ARMED FORCES § 3221 1 Editorially supplied. States, prior to repeal by Pub. L. 103–337, div. A, title XVI, §§ 1662(a)(3), 1691, Oct. 5, 1994, 108 Stat. 2988, 3026, effective Dec. 1, 1994. See section 12009 of this title. Prior sections 3213 and 3214 were repealed by Pub. L. 96–513, title II, § 202, title VII, § 701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981. Section 3213, act Aug. 10, 1956, ch. 1041, 70A Stat. 176, prescribed authorized strength of Regular Army in war- rant officers on active list. Section 3214, acts Aug. 10, 1956, ch. 1041, 70A Stat. 176; Sept. 2, 1958, Pub. L. 85–861, § 1(64), 72 Stat. 1463, pre- scribed authorized strength of Regular Army in en- listed members on active duty, exclusive of officer can- didates. A prior section 3215, acts Aug. 10, 1956, ch. 1041, 70A Stat. 176; Nov. 8, 1967, Pub. L. 90–130, § 1(9)(H), 81 Stat. 375, authorized strength of Women’s Army Corps of Regular Army in warrant officers on active list and in enlisted members on active duty to be prescribed by Secretary, prior to repeal by Pub. L. 95–485, title VIII, § 820(c)(3), Oct. 20, 1978, 92 Stat. 1627. A prior section 3216, act Aug. 10, 1956, ch. 1041, 70A Stat. 176, prescribed authorized strength of Corps of En- gineers in enlisted members on active duty, prior to re- peal by Pub. L. 96–513, title II, § 202, title VII, § 701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981. Prior sections 3217 to 3220 were repealed by Pub. L. 103–337, div. A, title XVI, §§ 1662(a)(3), 1691, Oct. 5, 1994, 108 Stat. 2988, 3026, effective Dec. 1, 1994. Section 3217, added Pub. L. 85–861, § 1(69)(A), Sept. 2, 1958, 72 Stat. 1463, related to authorized strength of Army in reserve commissioned officers in active status. See section 12003 of this title. Section 3218, added Pub. L. 85–861, § 1(69)(A), Sept. 2, 1958, 72 Stat. 1463; amended Pub. L. 96–107, title III, § 302(a), Nov. 9, 1979, 93 Stat. 806; Pub. L. 100–456, div. A, title XII, § 1234(a)(1), Sept. 29, 1988, 102 Stat. 2059; Pub. L. 102–190, div. A, title X, § 1061(a)(20)(B), Dec. 5, 1991, 105 Stat. 1473, related to authorized strength of Army in re- serve general officers in active status. See section 12004 of this title. Section 3219, added Pub. L. 85–861, § 1(69)(A), Sept. 2, 1958, 72 Stat. 1464, related to authorized strength of Army in reserve commissioned officers in active status in grades below brigadier general. See section 12005(a) of this title. Section 3220, added Pub. L. 85–861, § 1(69)(A), Sept. 2, 1958, 72 Stat. 1464; amended Pub. L. 95–485, title VIII, § 820(c)(4), Oct. 20, 1978, 92 Stat. 1627, related to distribu- tion of reserve commissioned officers by Secretary of the Army. See section 12007 of this title. AMENDMENTS 2021—Pub. L. 116–283, § 1811(g)(2), redesignated subsec. (d) of section 2305 of this title as subsec. (a) of this sec- tion and redesignated pars. (2) to (4) thereof as subsecs. (b) to (d), respectively. Subsec. (a). Pub. L. 116–283, § 1811(g)(3), inserted sub- sec. heading, redesignated par. (1)(A) as (1), inserted par. heading, and substituted ‘‘paragraph (2)’’ for ‘‘sub- paragraph (B)’’, and redesignated par. (1)(B) and its cls. (i) and (ii) as par. (2) and subpars. (A) and (B), respec- tively, inserted par. heading, and substituted ‘‘para- graph (1)’’ for ‘‘subparagraph (A)’’ in introductory pro- visions. Subsec. (b). Pub. L. 116–283, § 1811(g)(2), (4), redesig- nated subsec. (a)(2) as (b), inserted subsec. heading, re- designated subpar. (A) as par. (1), inserted par. heading, and substituted ‘‘paragraph (2)’’ for ‘‘subparagraph (B)’’, and redesignated subpar. (B) and its cls. (i) and (ii) as par. (2) and subpars. (A) and (B), respectively, in- serted par. heading, and substituted ‘‘paragraph (1)’’ for ‘‘subparagraph (A)’’ in introductory provisions. Subsec. (c). Pub. L. 116–283, § 1811(g)(2), (5), redesig- nated subsec. (a)(3) as (c), inserted heading, and sub- stituted ‘‘subsections (a) and (b)’’ for ‘‘paragraphs (1) and (2)’’. Subsec. (d). Pub. L. 116–283, § 1811(g)(2), (6), redesig- nated subsec. (a)(4) as (d), inserted subsec. heading, and substituted ‘‘subsection (a)(2) or (b)(2)’’ for ‘‘paragraph (1)(B) or (2)(B)’’ in introductory provisions; redesig- nated subpar. (A) and its cls. (i) and (ii) as par. (1) and subpars. (A) and (B), respectively, inserted par. head- ing, and realigned margins; and redesignated subpar. (B) as par. (2), inserted heading, realigned margin, and substituted ‘‘subsection (a)(2) or (b)(2)’’ for ‘‘paragraph (1)(B) or (2)(B)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed im- plementation and applicability of existing law, see sec- tion 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title. CHAPTER 222—INDEPENDENT COST ESTIMATION AND COST ANALYSIS Sec.1 3221. Director of Cost Assessment and Program Evaluation. 3222. Independent cost estimate required before ap- proval. 3223. Director: review of cost estimates, cost anal- yses, and records of the military depart- ments and Defense Agencies. 3224. Director: participation, concurrence, and ap- proval in cost estimation. 3225. Discussion of risk in cost estimates. 3226. Estimates for program baseline and analyses and targets for contract negotiation pur- poses. 3227. Guidelines and collection method for acquisi- tion of cost data. § 3221. Director of Cost Assessment and Program Evaluation (a) IN GENERAL.—The Director of Cost Assess- ment and Program Evaluation shall ensure that the cost estimation and cost analysis processes of the Department of Defense provide accurate information and realistic estimates of cost for the acquisition programs of the Department of Defense. (b) FUNCTIONS.—In carrying out the responsi- bility of the Director under subsection (a), the Director shall— (1) prescribe, by authority of the Secretary of Defense, policies and procedures for the con- duct of cost estimation and cost analysis for the acquisition programs of the Department of Defense; (2) with respect to cost estimation in the De- partment of Defense in general and with re- spect to specific cost estimates and cost anal- yses to be conducted in connection with a major defense acquisition program or major subprogram under chapters 321, 324, and 325, subchapter I of chapter 322, and sections 3042, 4232, 4273, 4293, 4321, 4323, and 4328 of this title, provide guidance to and consult with— (A) the Secretary of Defense; (B) the Under Secretary of Defense for Ac- quisition and Sustainment; (C) the Under Secretary of Defense (Comp- troller); (D) the Secretaries of the military depart- ments; and (E) the heads of the Defense Agencies;